27.3.13

Court-room dramas hold an endless fascination, but they are often a pale shadow of the real thing. Consider for example the case of the young man who, after being acquitted of his girlfriend’s murder, was challenged by the dead girl’s brother in a procedure which had not been used since the middle ages. It failed, but the facts of the case were recalled over a century later by another tragedy, which eerily mirrored them. Or the case of the vicar’s son convicted of cattle mutilation who was cleared, not as a result of diligent police work, but by the creator of England’s most famous fictional detective. This book contains a number of ‘unsolved mysteries’, like the murder of a magistrate which nearly ended the career, even the life, of Samuel Pepys. Other curiosities concern the quaint rules by which pirates were once bound and Parliament’s continuing concern for outlaws’ rights. Even the foggier crannies of the law can offer up their amusements, like the rhyming will which was put up for probate and the extraordinary story of how the law of cremation was reformed by an eccentric Welsh doctor and a Hindu ex-soldier. Told by a retired barrister, the tales in this book illustrate the role of the law in resisting oppression, whether from robber barons or modern governments. Selected for their intrinsic interest, the tales highlight lessons concerning the nature of justice and the diversity – sometimes the unknowability - of human conduct.

20.3.13

Mental health patients are more vulnerable than other
patients in that they tend to see a wider range of specialists – GPs,
counsellors, mental health practitioners, psychiatrists, social workers and
hospital staff. Because they see a wider range of specialists, unfortunately,
it is more likely that something will slip through the net. Because individuals
with mental health problems may also have difficulty in communicating, this can
make them even more vulnerable. Although every patient in the country is entitled
to the same standard of care, regardless of their mental health status,
occasionally the standard of their care can fall below par.

Mental health patients are already very vulnerable, and if
the duty of care towards them fails – for example, if a doctor fails to
diagnose a serious mental illness, if a psychiatrist fails to use the
appropriate techniques to help the patient cope with their illness, if a
hospital worker fails to detain a seriously mentally ill patient or if a GP
fails to prescribe the right medication for a mentally ill patient. In all of
these situations, the medical professional failed in their duty of care towards
the patient and therefore, a medical negligence claim can be made.

When it comes to the care of mentally ill patients, doctors
have to be especially sensitive in their duty of care. Because mentally ill
individuals are more vulnerable, if someone fails in their duty of care towards
them, this could lead to a serious deterioration of their mental health and in
severe situations, this could lead to self-harm, suicide or even to the patient
harming others. It could also lead to the development of a different mental
health condition, or to the worsening of an existing mental health condition
which could cause a secondary condition. For example, if a patient has
schizophrenia, but this fails to be diagnosed or it goes untreated, this could
lead to depression.

In this situation, in order to successfully make a claim,
the claimant must be able to prove that the worsening of their condition (or
the condition of the person that they are making the claim on behalf of) was
directly caused by the negligence of the medical practitioner – and that their
condition would not have worsened naturally without the intervention of the
doctor. If an individual with mental health problems died as a direct result of
medical negligence, it may be that someone else can make a claim for
compensation on their behalf – for example, their husband or wife, or their
mother or father.

If you want more
information about mental health and making a claim for medical negligence,
speak to a solicitor specialising in medical negligence claims.

If you've
had substandard dental care, or if your dentist or dental nurse has been
negligent in their care towards you, resulting in an injury or the contraction
of an illness or a disease, you might well be able to make a claim for
compensation – as long as you can prove that the injury, illness or disease you
are suffering from would not have otherwise occurred without the intervention
of your dentist or dental nurse. However, there is a strict time limit when it
comes to dental negligence claims within the UK, and it's very rare that that
time limit is extended.

Statute
of Limitations

In the UK,
the Statute of Limitations was introduced in 1980. This legislation was imposed
so that the individual seeking to make a claim had the best possible chance of
proving negligence, and so that the individual that the claim is being made
against (dentist, dental nurse, doctor) could have the best possible chance of
proving that their actions were not negligent. In most cases, this time limit
is non-negotiable.

Time
Limit

The time
limit for dental negligence claims within the UK is three years. This means
that you have three years from the date that the injury was first sustained, or
three years from the date that you were diagnosed with an illness or disease.
However, if you didn't know that you had sustained an injury for a number of
months until after you had sustained it, the time limit actually starts on the
date that you first knew about the injury. The issue with this is that you may
well have to work a little bit harder to prove that you didn't know about the
injury at an earlier date.

Are
There Any Exceptions?

The only
exceptions to this three year time limit are children and mentally
incapacitated adults. For children, the three years time limit starts on the
date of their 18th birthday, meaning that they have until their 21st
birthday to make a claim – this only applies, however, if they are making the
claim on their own behalf. If their injury, illness or disease was particularly
severe, a parent can make a claim on their child's behalf in order to claim
compensation for their child's care. If the child doesn't need the money
immediately, it will be put into a trust fund for them to get access to when
they turn 18.

The only
other exception to the rule is mentally incapacitated adults. If they are
unable to make a claim for themselves, the three year time limit may never
apply. In general, the adult will have three years from the date that they are
able to think for themselves to make a claim. However, a parent or a carer can
make a claim on behalf of the adult if the compensation is needed for their
ongoing care.

If you have
any questions about dental negligence time limits, speak to a dental negligence
solicitor for more information.

1.3.13

Your website is your new shop front. It is
your window to the world. Just like your real world assets, it comes with
responsibilities and obligations. While most businesses in the tourism industry
are used to the benefits of operating a website, they often overlook the legal
obligations which go hand-in-hand with owning a website.

Consumers are using the web more and more.
This is great for business but at the same time web users are becoming
increasingly savvy of their rights when surfing the web and booking holidays
online. More and more people are realising that real world laws apply to their
activities online and this has an impact for those businesses that trade in the
online world.

Increasing awareness on the part of the
public of issues such as online privacy, cookies, the Advertising Standards
Authority’s online powers, consumer rights and a website’s owner’s liability
for user generated content means that the legal compliance of websites is a
bigger issue now than ever before.

Navigating the raft of relevant legislation
can be tricky. That is why we have introduced a straightforward range of fixed
fee packages to help you on your journey to compliance. Our fixed fee solutions
will help you to avoid infringements of the Data Protection Act, to comply with
the new legislation on cookies, to avoid liability for content posted to your
site by users and to comply with your obligations to provide users with certain
information about the business behind your website. We can also help you with
your brand protection, again on a fixed fee basis.

To help you on the road to compliance, Stephens
Scown Solicitors have put forward a list of top tips for protecting your
reputation online:

1. Register your trade
mark. Whether
it is your company name, domain name or the name of a hotel, we strongly
recommend that you register your key trading names. A registration is a
powerful tool which creates a monopoly and greatly increases your options in
the event that somebody else misuses your brand or sets up using a similar or
identical brand. Note that not all marks can be registered, but we are happy to
give you a steer on this on a free, no obligation consultation.

2. Take responsibility for
the content on your site. Make sure that the ownership of all the content on your site can
be traced. Do you have permission to use it? Make sure you control user
generated content as well, because you will be liable for this.

3. Comply with the
Advertising Standards Authority’s codes. Ensure that all statements on your website
are honest and, where capable of being proven, you have the evidence to hand.
Statements which are capable of being proven include statements such as “we are
the best hotel in Devon”. Ensure also that all social media posts made by
employees are clearly indicated so that users can tell that they are a form of
advertising.

4. Make your terms
engaging. People
booking a holiday do not want to read reams of small font legalese. Make your
terms bold and upfront. Ensure they reflect the ethos of your business. Booking
a holiday is an exciting activity and there is no reason why your terms should
not engage with your user in the same way that the rest of your website does.
Consider also using your terms as a selling tool: you can highlight the types
of services which are not covered and offer them as a bolt-on. Finally, do not
hide your terms and conditions – if they are not prominent enough, they
probably will not bite.

5. Cancellations. Many online reputational
issues arise from the way businesses deal with cancellations of customer
bookings. Remember that you have a duty to mitigate your loss: can you rebook
the accommodation? Be wary also of penalty clauses (e.g. non-refundable
deposits). Remember that you can only retain the profit element of cancelled
bookings.

6. Comply with the
Distance Selling Regulations, if you sell goods. Make sure you are clear about prices, who the
seller is, timescales of delivery etc. Also, remember that consumers can return
many goods for no reason and be entitled to a refund.

7. Conduct a cookie audit.
If you
are using cookies, make sure you provide people with a mechanism to opt into receiving
cookies before they are installed and ensure you provide details of all cookies
in your privacy policy. The legislation on the use of cookies changed recently
and whether or not you are complying is immediately obvious to web users.

8. Your web designer
probably owns the copyright in your website. Check your agreements with any third party
that created your website for you. Unless those agreements expressly, in
writing, assign copyright in the website (including computer code, text or
images on the same) to you then the third party that created those materials
will continue to own them and you are only using them with their permission. If
this is the case, you should attempt to get a formal assignment in place as
soon as possible. Otherwise, if the developer ceases trading or withdraws their
permission, you could find your website switched off overnight.

9. Use website terms and
conditions of use on your site. These create a contract between you and visitors to your website.
They control what visitors can and cannot do whilst at your site. They can be a
fantastic tool in helping you gain control of who links to your site, how you
link to other people’s site and creating remedies in the event that people post
malicious comments or take images or text from your site.

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About this blog

BabyBarista started out as a humble blog on this website. The stories he told led to him getting two book deals with Harry Potter's publisher Bloomsbury and also a blog on The Times online for three years and The Guardian online for two years. Much of the first six months of the blog can be found in the archives on this site from October 2006 to March 2007. Later content is at the BabyBarista Blog. It is written by barrister (non-practising) and writer Tim Kevan.

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Law and Disorder

Law and Disorder is published by Bloomsbury and was described by broadcaster Jeremy Vine as "a wonderful, racing read - well-drawn, smartly plotted and laugh out loud" and by The Times as "a cross between The Talented Mr Ripley, Rumpole and Bridget Jones’s Diary". It is based upon the BabyBarista blog which was described by The Lawyer as "genius"

Law and Peace

Law and Peace is the second novel in The BabyBarista Files and was published by Bloomsbury in 2011.

Cartoons by Alex Williams

The wonderful cartoons of the BabyBarista characters are by hotshot Hollywood animator Alex Williams who just happened to qualify as a barrister in his youth. He also draws the Queen's Counsel cartoons for The Times and most recently penned 101 Ways to Leave the Law. If you would like a signed copy of any of the cartoons, please email garry@lawbriefpublishing.com.

BabyBarista and the Art of War

BabyBarista and the Art of War was the original name for the trade paperback version of Law and Disorder.